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USA ‘I HAVE NO REASON TO

BELIEVE THAT I WILL

EVER LEAVE THIS

PRISON ALIVE’

INDEFINITE DETENTION AT GUANTÁNAMO CONTINUES; 100 DETAINEES ON HUNGER STRIKE

Amnesty International is a global movement of 3 million people in more than 150 countries and territories, who campaign on human rights. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments. We research, campaign, advocate and mobilize to end abuses of human rights. Amnesty International is independent of any government, political ideology, economic interest or religion. Our work is largely financed by contributions from our membership and donations

Amnesty International Publications First published in May 2013 by Amnesty International Publications International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom www.amnesty.org Copyright Amnesty International Publications 2013 Index: AMR 51/022/2013 Original Language: English Printed by Amnesty International, International Secretariat, United Kingdom All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publishers.

Table of Contents

‘It is not a surprise to me that we’ve got problems in Guantánamo’ .................................... 1

History of a hunger striker ............................................................................................. 5

The backdrop to the hunger strike .................................................................................. 7

Medical ethics ............................................................................................................. 9

Excuses, excuses........................................................................................................ 12

Promises, promises..................................................................................................... 14

Five steps towards ending the Guantánamo injustice...................................................... 16

Endnotes ................................................................................................................... 17

USA: ‘I have no reason to believe that I will ever leave this prison alive’. Indefinite detention at

Guantánamo continues; 100 detainees on hunger strike

Index: AMR 51/022/2013 Amnesty International 3 May 2013 1

‘IT IS NOT A SURPRISE TO ME THAT WE’VE GOT PROBLEMS IN GUANTÁNAMO’ [A]ll governments have a responsibility to protect universal human rights… So anywhere that

human rights are under threat, the United States will proudly stand up

US Secretary of State John Kerry, 19 April 20131

What will it take to get the US government – across its three branches – to act with a real and

continuing sense of urgency to close the US detention facility at Guantánamo Bay in Cuba,

and to do so in ways that meet the USA’s international human rights obligations?

A glimmer of hope for progress emerged with President Barack Obama breaking his recent

silence on the detentions. At a White House press conference on 30 April 2013, one

thousand five hundred and sixty days after he committed his administration to closing the

Guantánamo detention facility within 365 days, President Obama said that he still

“believe[d] that we’ve got to close Guantánamo”. He was asked about the growing hunger

strike among detainees held there, and responded that it was “not a surprise to me that we’ve

got problems in Guantánamo”. He further said that:

“the notion that we’re going to continue to keep over a hundred individuals in a no

man’s land in perpetuity…, the idea that we would still maintain forever a group of

individuals who have not been tried – that is contrary to who we are, it is contrary to our

interests, and it needs to stop”.2

The US authorities, President Obama included, are yet to acknowledge that the Guantánamo

detention regime is contrary to international human rights law, instead framing the “problem”

exclusively in terms of domestic interests and values and the USA’s “war” against al-Qa’ida

and associated groups. And while the administration continues to blame Congress for

blocking resolution of the detentions, the administration’s own “promise” involves moving

some four dozen detainees into indefinite detention elsewhere and, for a number of other

detainees, continuing to resort to a military commission system falling short of international

fair trial standards.

But, in part, President Obama is right – it is not surprising that these detainees are protesting

their situation. Whatever the initial trigger for this hunger strike, there is no escaping the

backdrop to it – detainees being held year after year after year with no indication of when, if

ever, they will be released or brought to trial. Distress and protest are predictable outcomes

of treating detainees as if they have no human rights, ciphers to be cast into oblivion

thousands of miles from their families, their fate left to the whims of domestic politics to the

exclusion of international human rights law and principles.

One of the detainees on hunger strike is Obaidullah, an Afghan national who has been in US

military custody without trial since 21 July 2002. He told his lawyer in late March 2013:

“I am losing all hope because I have been imprisoned for almost eleven years now at

Guantánamo and still do not know my fate”.3

Obaidullah was about 19 years old when he was taken into US custody. He is now about 30.

According to his lawyer, his parting words at the end of their latest meeting in March 2013

were “please tell the world of this unfairness”, adding “Latif died here even with a

clearance”. Here Obaidullah was referring to Yemeni national Adnan Farhan Abdul Latif who

had been among those “approved for transfer” by the executive authorities, and who had

repeatedly expressed despair at his indefinite detention. His circumstances, he said, “made

death more desirable than living”. In October 2011, after nearly a decade in US custody

without charge or trial and a few days after a federal appeals court overturned a lower court

order that he be released, Adnan Latif told his lawyer “I am a prisoner of death”. Latif had

been involved in protests against conditions at the camp, protests which included hunger




strikes. When his lawyers met with him in May 2012, Adnan Latif had resumed his hunger

strike. He was physically very weak and he “thinks he will die and has given up all hope”, his

lawyer said. Although he apparently ended his hunger strike, in September 2012, three

months after the US Supreme Court refused to take his case, Adnan Latif was dead,

reportedly as a result of suicide.4 In a statement, his lawyer said:

“However Adnan died, it was Guantánamo that killed him. His death is a reminder of the

human cost of the government’s Guantánamo detention policy and underscores the

urgency of releasing detainees the government does not intend to prosecute.”5

The US authorities have long been warned of the psychological distress caused by the

indefinite detention regime at Guantánamo. In January 2004, the International Committee of

the Red Cross (ICRC), describing itself as “uniquely placed to witness the impact this

uncertainty has had on the internees”, revealed that it had “observed a worrying deterioration

in the psychological health of a large number of them”.6 That was over nine years ago.

If the USA didn’t listen then, it should listen – and act – now. On 11 April, ICRC President

Peter Maurer called on “the United States, including its Congress, [to] urgently find a way to

resolve all pending humanitarian, legal and policy issues relating to the detention of persons

held at Guantánamo Bay”. Five days later, the United Kingdom government released its

annual human rights report. In it, the UK said that “the indefinite detention without trial of

persons in Guantánamo Bay is unacceptable and that the detention facility at Guantánamo

Bay should be closed.”7

On 5 April, the United Nations High Commissioner for Human Rights, Navi Pillay, had also

called for urgent resolution of the Guantánamo detentions, saying:

“Some of them have been festering in this detention centre for more than a decade.

This raises serious concerns under international law… [T]his systemic abuse of

individuals’ human rights continues year after year. We must be clear about this: the

United States is in clear breach not just of its own commitments but also of

international laws and standards that it is obliged to uphold.”8

“Given the uncertainty and anxieties surrounding their prolonged and apparently indefinite

detention in Guantánamo,” the High Commissioner for Human Rights continued, referring to

the hunger strike, “it is scarcely surprising that people’s frustrations boil over and they resort

to such desperate measures.”

In a matter of weeks, the number of detainees the Guantánamo authorities say meet the

military’s definition of being on hunger strike has gone up seven fold, from 14 detainees on

15 March 2013 to 100 on 29 April.9 By 2 May, 23 of the detainees were being “tube fed”,

according to the authorities, with four of these detainees in hospital. A number of those being

force fed are reported to be detainees who have long been “approved for transfer” by the US

authorities.10

Over the weekend of 27/28 April, about 40 more medical personnel arrived at Guantánamo,

despatched there by the US Navy in response to the hunger strike.11 At the same time,

among those raising questions about the reported use of force-feeding was the American

Medical Association. In a letter to US Secretary of Defense Charles Hagel, dated 25 April,

AMA President Dr Jeremy Lazarus called for the US authorities to “address any situation in

which a physician may be asked to violate the ethical standards of his or her profession”. The

force feeding of a mentally competent hunger striker by medical staff contravenes medical

ethics. In his letter, Dr Lazarus reminded the US authorities that “every competent patient

has the right to refuse medical intervention, including life-sustaining interventions”.12

Amnesty International itself awaits a reply to the letter it faxed to Secretary Hagel on 22

March 2013.13 The organization is not in a position to know the full details about which

detainees are on hunger strike or what precise form any particular detainee’s protest is




taking. Neither does the organization know the exact details of how any force feeding is being

administered in any particular case. Nevertheless, a recent detainee account published in the

New York Times and other allegations, as well as the past use of force-feeding at the prison

camp, and the context of the detention regime in which the force-feeding is taking place,

raise serious concerns. In addition, as noted further below, apparently punitive conditions

being imposed on detainees since they were moved back to single cells in early April is cause

for further concern.

Hunger strikes undertaken by

prisoners are undoubtedly complex

affairs, as is decision-making in

relation to force-feeding, raising

issues of medical ethics, informed

consent, detainee autonomy,

confidentiality, and trust between

physician and prisoner. The

current situation at Guantánamo

heightens the need for the

detainees to be guaranteed

continued and regular access to

independent medical assessment

and care and for all medical

personnel to abide by medical

ethics. This is even more so given

the history of human rights

violations and violations of

medical ethics at this and other

US detention facilities, including

the participation of health

professionals in the abuse of

detainees during interrogation

processes.15

In her statement of 5 April, the

UN High Commissioner for Human

Rights pointed out that the USA’s

failure to resolve the detentions

“severely undermines the United

States’ stance that it is an upholder of human rights, and weakens its position when

addressing human rights violations elsewhere.” She noted that “When other countries breach

these standards, the US – quite rightly – strongly criticizes them for it.”

On 19 April 2013, the US Department of State issued its latest assessment of human rights

in other countries. Among the topics it reported on were hunger-strikes undertaken by

detainees or prisoners protesting detention without trial or prison conditions or alleged torture

and other ill-treatment. In Afghanistan, for example, it noted that in March 2012, “100

prisoners went on a hunger strike to protest their mistreatment at the Pul-e-Charkhi facility.”

The State Department’s entry on Tunisia reported:

“The death of two Salafist detainees in mid-November after a two-month hunger strike

protesting their detention alerted observers to the failure of the courts to process cases

expeditiously. Some Salafist detainees claimed they were detained without charges for

periods as long as six months.”16

In January 2012, a prisoner died in Cuba, as a result of health problems allegedly arising

from a hunger strike protesting at his unfair trial and imprisonment. Amnesty International

On 1 May 2013, the Inter-American Commission on Human Rights

(IACHR), the UN Working Group on Arbitrary Detention, and three UN

Special Rapporteurs (on torture, health and counter-terrorism)

issued an urgent statement appealing to the US authorities to:

“respect and guarantee the life, health and personal integrity of

detainees at the Guantánamo Naval Base, particularly in the context

of the current hunger strike.” They called on the US authorities to:

(a) adopt all legislative, administrative, judicial, and any other

types of measures necessary to prosecute, with full respect for the

right to due process, the individuals being held at Guantánamo

Naval Base or, where appropriate, to provide for their immediate

release or transfer to a third country, in accordance with

international law;

(b) expedite the process of release and transfer of those detainees

who have been certified for release by the Government itself;

(c) conduct a serious, independent, and impartial investigation into

the acts of forced feeding of inmates on hunger strike and the

alleged violence being used in those procedures;

(d) allow the IACHR and the United Nations Human Rights Council

mechanisms, such as the Working Group and the UN Special

Rapporteurs, to conduct monitoring visits to the Guantánamo

detention center under conditions in which they can freely move

about the installations and meet freely and privately with the

prisoners; and

(e) take concrete, decisive steps toward closing the detention center

at the Guantánamo Naval Base once and for all.14




considered that responsibility for this death lay “squarely with the Cuban authorities” for

imprisoning him as a prisoner of conscience.17 The US government apparently agreed, saying

that it “deplored” the death of Wilman Villar Mendoza “who launched a hunger strike to

protest his incarceration and he succumbed to pneumonia”. The US Department of State

said that his death underscored how the “Cuban authorities must take meaningful actions to

respect the basic rights of their own people” as well as “the need for greater international

scrutiny of Cuba’s human rights record and international monitoring of Cuba’s prisons.”18

On the southeastern tip of Cuba, a hunger strike involving scores of detainees is taking place

against a backdrop of their unlawful detention. These men are not prisoners of conscience,

but prisoners of domestic US politics. The hunger strikes at Guantánamo should remind the

world of the need to keep pressing the USA to end its abject failure to address the detentions

as a human rights issue, and that internal laws and politics are an illegitimate excuse for the

USA’s failure to meet its international human rights obligations (see further below).

The administration and Congress have it within their power to remedy the situation, not by

breaking the hunger strike through force feeding, punitive action, or isolating the detainees,

but by introducing real justice and respect for human rights as the route to resolving the

detentions and finally doing what they should have done years ago – releasing detainees

whom the USA does not intend to prosecute and bringing to fair trial in independent civilian

courts without recourse to the death penalty those it does.

At the press conference on 30 April President Obama said that he would “examine every

option” under executive power to deal with the detentions, but suggested that “ultimately,

we’re also going to need some help from Congress”. He said that he was “going to go back at

this” and that he would ask some members of Congress to “step up and help me on it.”

Five days earlier, the Chairperson of the Senate Intelligence Committee, Dianne Feinstein,

had called on the Obama administration to renew its efforts to transfer out of Guantánamo

those detainees who had been approved for transfer. She said:

“The fact that so many detainees have now been held at Guantánamo for over a decade

and their belief that there is still no end in sight for them is a reason there is a growing

problem of more and more detainees on a hunger strike. This week, monitors from the

International Committee of the Red Cross who travelled to Guantánamo recently told my

staff that the level of desperation among the detainees is ‘unprecedented’ in their view.

I would like to ask that the Administration review the status of the 86 detainees who

were cleared for transfer in the past and let me know if there are suitable places to

continue to hold or resettle these detainees either in their home countries or third

countries.”19

She also urged the administration to revisit the moratorium on the repatriation of Yemeni

detainees – the majority nationality at Guantánamo – imposed by the administration in early

2010, a moratorium she had herself called for. On 1 May, the White House said that the

moratorium remained in place – “that is our policy”.20

Amnesty International calls on both the administration and Congress to ensure that the

solutions reached for each and every detainee complies with international human rights law

and standards. The executive should move to release those it has already approved for

transfer out of the base, with all necessary human rights protections, and Congress should

act to lift restrictions it has sought to impose on the administration. But while it may be

possible for the administration to resolve some of the cases more immediately than others,

resolution of this situation must encompass all the detainees, not just some category of

them.




HISTORY OF A HUNGER STRIKER One of the men reported to be on hunger strike is Yemeni national Musa’ab Al Madhwani.

Like other detainees held at Guantánamo, his current situation cannot be considered

separately from what he has already been through over the past decade in US custody.

In 2010, a US federal judge found “credible” Musa’ab al Madhwani’s detailed allegations of

torture and other ill-treatment that he says he endured after his arrest in Pakistan in

September 2002.21 Musa’ab al Madhwani has alleged that he was whipped, beaten and

threatened in Pakistani custody and his allegations indicate that US personnel were aware of

this at the time. After five days in Pakistani custody he was handed over to US custody and

flown to Afghanistan. He says he was taken to the “Dark Prison”, a secret CIA-operated

facility in or near Kabul, where he was held for about a month. There “he suffered the worst

period of torture and interrogation, treatment so terrible that it made him miss his time with

the Pakistani forces”. He was allegedly held for 30-40 days “in darkness so complete that he

could not see his hand in front of his face”; “not allowed to sleep for more than a few

minutes at a time”; “was fed only about every 2½ days, in very small portions”; and “twenty-

four hours a day, obnoxious music blared at a deafening volume”. For most of his detention

at the Dark Prison, he was allegedly

“suspended from a wall by one hand, feet shackled, in a stress position that allowed

him neither to sit nor stand fully. Al-Madhwani was shackled in this way night and

day, without relief except during interrogation sessions. During these sessions, Al-

Madhwani’s hands were shackled to the floor… On one occasion, two men took Al-

Madhwani, hooded and shackled, stripped him naked, and attached electrical wires

to his genitals. As the men discussed whether to turn on the electricity, Al-

Madhwani began screaming with fear. The men laughed and then repeatedly

drenched Al-Madhwani in water so cold that Al-Madhwani could not move his

fingers or his mouth…

Day after day, Al-Madhwani hung from the wall by his hand, in complete and total

darkness, loud music blaring. Disoriented, he heard noises of mice and doors and

thought they were ghosts. Thinking that he must be hallucinating, Al-Madhwani

tried to calm himself by imagining mountains. Then he would hear a small noise,

and as he turned toward it, five or more men would jump on him, remove his chains

from the wall, and beat, kick, and throw him to the ground. Pointing a gun to Al-

Madhwani’s head, guards threatened him with the worst acts, including

electrocution. For Al-Madhwani, these surprise attacks were the worst part of the

Dark Prison, making him feel like his heart was tearing apart or his heart and brain

were being extracted from his body.”22

Musa’ab al Madhwani was then transferred to the US air base at Bagram where he was held

for another five days. There he has alleged that: “I was forced to stand the entire time until

my feet swelled and I was exhausted. I was dragged by the neck to interrogation, where dogs

would bark in my face.” He was transferred to Guantánamo in late October 2002. There he

was held in isolation and subjected to further interrogations.

In a habeas corpus hearing in US District Court more than seven years after Musa’ab Al

Madhwani was taken to Guantánamo, Judge Thomas Hogan noted that there was “no

evidence in the record” that Al Madhwani’s allegations were inaccurate. To the contrary, the

allegations were corroborated by “uncontested government medical records describing his

debilitating physical and medical condition during those approximately 40 days in Pakistan

and Afghanistan, confirming his claims of these coercive conditions.” Judge Hogan

emphasised that as described in Musa’ab Al Madhwani’s “classified testimony about his

conditions of confinement, which I find to be credible, the United States was involved in the




prisons where he was held, and believed to have orchestrated the interrogation techniques,

the harsh ones to which he was subject”.

On 26 March 2013, lawyers for Musa’ab Al Madhwani filed an emergency motion for

“humanitarian and life-saving relief” in US District Court. The motion relayed that Musa’ab

al Madhwani had the previous day told his lawyers in a telephone call, through an interpreter,

that he had been on hunger strike for some time to protest what he said were deteriorating

conditions of detention, including lack of potable water and cold temperatures in his cell.

Along with the motion, the lawyers filed a statement from the detainee himself:

“I have been in prison in Guantánamo Bay, Cuba, for ten and a half years… Before I

was sent to the prison at Guantánamo Bay, I was detained at the Dark Prison at

Bagram Air Base where I was tortured and deprived of food and water.

Both of my parents have died during the time that I have been in prison in

Guantánamo Bay. They were waiting for me to come home and now they are gone. I

am afraid that my entire family will be dead before I am released from this prison.

I, and other men here at the prison, feel utterly hopeless. We are being detained

indefinitely, without any criminal charges against us… I have no reason to believe

that I will ever leave this prison alive. It feels like death would be a better fate that

living in these conditions. I am dying of grief and pain on a daily basis because of

this indefinite detention…”

A doctor retained by Musa’ab Al Madhwani’s lawyers as an expert witness signed a statement

on 13 April 2013 in support of the motion. He had interviewed the detainee for about 90

minutes by telephone from Maryland to Guantánamo, and had also been able to review a

number of “medical records and other documentation” released by administration lawyers. In

his signed statement, he said:

“My clinical judgment…is that Mr al Madhwani has suffered serious deterioration in

his medical condition such that his life may be in imminent danger… His condition

had deteriorated to the point that he collapsed on April 10, 2013, requiring

emergency medical treatment including intravenous fluids….

He has suffered depression for at least a year following the unexpected death of his

mother. He reported that his father had also died during his indefinite detention,

and a fear that his family members would die off one by one while he remained in

prison… His faith precludes conscious or active thinking about suicide, but he has

wished and hoped to die over the past several months.”23

The doctor also expressed concern that a deterioration of conditions of confinement “could

trigger in Mr Al Madhwani the symptoms of post-traumatic stress disorder linked to the

effects of his torture”. The re-traumatization or the re-experiencing of trauma by torture

victims is well documented. The UN’s Manual on the Effective Investigation and

Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(the Istanbul Protocol) describes how “distress at exposure to cues that symbolize or

resemble the trauma is frequently manifested by a lack of trust and fear of persons in

authority, including physicians and psychologists.” 24 This is mainly in the context of

consensual interviews or examinations by physicians, and would apply to a much greater

degree to the non-consensual force-feeding of a detainee on a hunger strike protest. Any of

those detained at Guantánamo and previously subjected to torture may in any event already

be experiencing re-traumatization as a result of the detention regime they are subjected to.

The authorities should not need reminding that, rather than potentially re-traumatizing

alleged torture victims, they are an under an obligation to provide rehabilitation to any

victims who have suffered torture or other ill-treatment by US officials.25

During oral argument in District Court on 15 April 2013 on Musa’ab al Madhwani’s




emergency motion, after which Judge Thomas Hogan dismissed the motion for lack of

jurisdiction (see further below), the administration lawyers had said that the detainee had

been moved from Guantánamo’s Camp 6 to Camp 5 “at his own request”. Three days later,

the administration told Judge Hogan that it had been mistaken and that the transfer had

been for medical reasons – “following his medical examination and treatment on April 10,

2013, he was transferred to Camp 5 at the request of medical authorities.” The

administration apologized to the court for the error.

No apologies have been forthcoming from the US authorities in relation to the human rights

violations committed against this and other detainees.

THE BACKDROP TO THE HUNGER STRIKE Hunger strikes undertaken by detainees or prisoners protesting some aspect of their detention

or treatment are a complex issue implicating a range of rights, including the right to freedom

of expression, the right to health, and the right to be free from torture and other cruel,

inhuman or degrading treatment or punishment. Intersecting with the state’s obligations on

these rights are questions of medical ethics and the clinical judgment of health professionals

involved in the prison setting.

This is not the first time detainees have gone on hunger strike at Guantánamo, and the

previous history of such protests there raised serious concerns, as the report of five UN

experts found in 2006.26

This latest hunger strike reportedly began on 6 February 2013. According to a declaration

signed by a lawyer representing Afghan national Obaidullah:

“That week [in early February], camp authorities asked all of the detainees in Camp 6 to

step outside of the cells while a ‘shakedown’ of the entire camp was conducted by US

soldiers. While the prisoners were all outside of the cell blocks, soldiers went into the

cells, and searched the belongings of the prisoners in Mr Obaidullah’s cell block. Such

an invasive search had not been conducted since the early years at Guantánamo under

President Bush. The intrusive searches were unexpected, sudden, and disrespectful. To

the knowledge of Mr Obaidullah, there was no incident which provoked the searches.

During the invasive searches, the soldiers confiscated detainees’ personal items,

including blankets, sheets, towels, mats, razors, toothbrushes, books, family photos,

religious CDs, and letters, including legal mail.

Mr Obaidullah personally had the following items taken from him: blanket, sheet, towel,

family photos, a medically necessary device he used for his knee, some of his legal

documents, mail from his attorneys, and documents from his family. This was especially

distressing for him because he has done nothing to provoke the taking of belongings and

comfort items that gave him a small sense of humanity”.

This is outlined in a declaration signed by Obaidullah on 27 March 2013, which has just

become available after classification review. In it Obaidullah also states:

“I had not participated in hunger strikes, or organized protests in the past. I have been

patiently challenging my imprisonment in US civil courts. But the latest actions in the

camps have dehumanized me, so I have moved to take action. Eleven years of my life

have been taken from me, and now by the latest actions of the authorities, they have

also taken my dignity and disrespected my religion...

The strike has led authorities to treat all of us more harshly even as our health is

deteriorating.”27

Whatever the reasons for the current hunger strike – the authorities have claimed that




detainee allegations of abusive cell searches, mishandling of detainees’ Qur’ans, and other

allegations of deteriorating conditions are unfounded – there is no getting away from the

backdrop to this protest. The fact is that the vast majority of the 166 detainees held at the

base, including dozens of individuals who have long been “approved for transfer” by the US

authorities, are held in indefinite detention without charge or criminal trial. Even the military

authorities have acknowledged the impact of this situation on the detainees. At a Pentagon

briefing on 20 March, General John F. Kelly, Commander of US Southern Command, said

that the detainees had had “great hope” that the Guantánamo detention facility would have

been closed by now. It is now, after all, more than three years past President Obama’s

deadline for closing the facility and more than 11 years since the first detainees arrived at

the base; some of the detainees have been held there since.

At the 20 March briefing and at a House Armed Services Committee hearing on the same

day, General Kelly suggested that a contributory factor to the current protests were recent

developments perceived by detainees as indicating that the administration has given up on

fulfilling President Obama’s 22 January 2009 executive order on closing Guantánamo.

General Kelly said that these developments included the announcement in early February

2013 that the Office for the Special

Envoy for the Closure of Guantánamo Bay

would itself be closed down, and the fact

that President Obama had made no

mention of the Guantánamo detentions

either in his inaugural address of 21

January or in his 12 February State of the

Union speech. General Kelly further told

the House Armed Services Committee on

20 March that the detainees had been

“devastated” by what they perceived as

the President having “backed off” closure

of the Guantánamo detention facility. It is

into this silence that President Obama

spoke at the White House press

conference on 30 April.

On 2 May, the spokesperson for the US

Department of State said that “here in

this building we remain actively focused

on pursuing transfer options for detainees

approved for transfer by consensus

decisions of the departments and

agencies involved.”28 He also stated that

the White House was “actively” looking at

appointing “a new senior-level person here at this building” in relation to this issue.

Amnesty International awaits a response to the letter it sent to Secretary of Defense Charles

Hagel on 22 March, calling for real urgency to be injected into the administration’s claims

that it remains committed to resolving the detentions. The organization also called on the

authorities to implement a serious and thorough review of the current situation at the facility,

including a review of cell search policies and practices.

Amnesty International would oppose any action taken against hunger strikers aimed at

punishing them for their protest or any attempts to coerce them into ending their strike. The

organization notes the order in the early morning of 13 April issued by the commander of

Joint Task Force Guantánamo (JTF-GTMO) to shift detainees from communal to single-cell

living at Camp VI “to ensure the health and security of those detainees”, an order that was

GUANTÁNAMO: 11 YEARS, 9 DEATHS

January 2002 – First detainees transferred to US Naval Base at Guantánamo Bay in Cuba

June 2006 – Three detainees, two Saudi Arabian nationals, Mane’i bin Shaman al-‘Otaybi and Yasser Talal al-

Zahrani,and one Yemeni, Salah Ahmed al-Salami, die at

Guantánamo, reportedly by suicide

May 2007 – Saudi Arabian detainee Abdul Rahman Ma’ath Thafir al-Amri dies, reportedly by suicide

December 2007 – Afghan detainee Abdul Razzak Hekmati dies, reportedly of cancer

June 2009 – Yemeni detainee Mohammed Ahmed Abdullah Saleh al-Hanashi dies, reportedly by suicide

February 2011 – Afghan detainee Awal Gul dies, reportedly of natural causes

May 2011 – Afghan detainee Inayatollah dies, reportedly by suicide

September 2012 – Yemeni detainee Adnan Farhan Abdul Latif dies, reportedly by suicide

April 2013 – 100 detainees on hunger-strike




carried out on that day. JTF-GTMO issued a news release reporting that:

“This action was taken in response to efforts by detainees to limit the guard force's

ability to observe the detainees by covering surveillance cameras, windows, and glass

partitions. Round-the-clock monitoring is necessary to ensure security, order, and safety.

In order to re-establish proper observation, the guards entered the Camp VI communal

living spaces to transition detainees into single cells, remove obstructions to cameras,

windows and partitions, and medical personnel conducted individual assessments of

each detainee. The ongoing hunger strike necessitated these medical assessments.

Some detainees resisted with improvised weapons, and in response, four less-than-lethal

rounds were fired. There were no serious injuries to guards or detainees.”29

The organization emphasises that such moves must not be driven by or carried out with any

punitive intent. In particular, detainees should not be punished for exercising their right to

peaceful protest. Any use of force must be strictly necessary for the maintenance of security

and order within the institution, or when personal safety is threatened. 30 Furthermore,

conditions of detention should conform to the UN Standard Minimum Rules for the

Treatment of Prisoners, the UN Body of Principles for the Protection of All Persons under any

Form of Detention or Imprisonment and other international human rights standards.31 If

solitary confinement is used, it should not be as a punitive measure and only for the shortest

time possible, it should be applied only in accordance with stringent due process

requirements and regular, daily, access to adequate medical attention by a doctor must be

granted.32 Solitary confinement may amount to a violation of the prohibition on torture and

other ill-treatment.33

According to lawyers for Obaidullah, in a recent communication with Amnesty International,

“The latest report from our client is that after the April 13 raid in which prison guards put

everyone hunger striking into solitary cells, he has had no toothbrush or toothpaste for two

weeks, no nail clipper, no soap. His showers and recreation are often offered in the middle of

the night, forcing him to choose between that and sleep. The guards are making lots of noise

to prevent the detainees from sleeping soundly.”

If these allegations are true, it is difficult to interpret the behaviour described above as

anything other than punitive and, given that the target of this search and seizure of personal

possessions was a man on hunger strike, it appears to be punishment for his protest.

Deprivation of personal and dental hygiene materials, of personal effects and measures to

deprive prisoners of sleep would breach international prison standards34 and could constitute

ill-treatment. There appear to be no reasonable grounds known to Amnesty International that

might justify the actions taken against this detainee described above.

MEDICAL ETHICS In an article in the latest issue of the World Medical Journal, three experts on the issue of

hunger strikes in prison write the following:

“It has to be stated here clearly that a competent prisoner, that is to say, capable of

discernment, and not submitted to any pressure or coercion, direct or indirect, has the

right to autonomy. This includes accepting or refusing any treatment, once informed of

the pros and cons. This also includes fasting as a way of protest as this can be

considered as a last resort the prisoner has to make a message known or to make a

demand. As has been mentioned [and see below] the maximum authority on medical

ethics has decided that patient autonomy trumps beneficence in such a case, and that a

physician should [not] force a hunger striker to eat…

As prolonged fasting can arguably become a medical problem, the ‘custodial’ authorities

often medicalize the issue by order[ing] force-feeding. Their argument is that the reason




physicians should intervene is to ‘save lives’. They thus ‘throw the hot potato’, so to say,

into the medical camp, and order… the physician to solve their problem and thus quell

the protest. The counter argument to this is relatively simple, as the weight of the ethics

is in favour of the physicians. The physician’s role is not to ‘resolve the problem’ with an

unethical invasive procedure against the patient’s informed refusal. The power to ‘resolve

the problem’ lies with the authorities”.35

As this hunger strike at Guantánamo has continued, and grown since it first began in

February 2013 there have been reports of its impact on the health of a number of the

detainees involved, and some detainees have been reported as suffering rapid weight loss.

For example, Yemeni detainee Sanad al-Kazimi told his lawyer that he was on hunger-strike

and that by late March that he had

lost 42 pounds (19 kilograms).36

Obaidullah, an Afghan detainee who

has been in US military custody for

nearly 11 years, told his lawyer in late

March 2013:

“I have lost a lot of weight. I am

down from 167 pounds to 125

pounds. I am weak, and have pain

in my waist dizziness I can not

sleep well. I fell [sic] hopeless. I

can’t exercise my muscle become

weaker in last 50 days I have

thrown up 5 times”

His lawyer has said that the above

description given to her by Obaidullah

“describes exactly the condition that I

personally saw him in” when she met

with him on 26, 27 and 28 March

2013, by which time Obaidullah said

he had been on hunger strike for about

48 days.

According to another detainee’s

account given to his lawyer, the

director of the UK-based legal action

charity Reprieve, in a telephone call

from Guantánamo on 11 April 2013,

“Code Yellows (when a prisoner

collapses or passes out) in Camp V are

now running at 10 to 15 times a day”.

After the call, the lawyer expressed

concern about the health and well-

being of the detainee, Saudi Arabian

national and UK resident Shaker Aamer,

“Shaker coughed really badly twice during our phone call – he reports that he now has a

chest infection that is making his other medical complaints worse… At the end of our

conversation, he appeared to be crying, or very close to crying, which is very unusual for

Shaker, for he is a proud man who does not like to show weakness. However, it was clear

that he genuinely fears dying in Guantánamo now, and he made me promise to deliver a

message to his wife if the worst comes to the worst, and he does not see her again.”37

“I made this lantern with my brothers. It’s made with bits of

paper and cardboard. We used a water bottle sanded on the

floor as glass. We painted it with bits of paint and fruit juice.

It’s held together by pressure only. We made this lantern for

those in the world who remember and pray for us during this

time of suffering. Let its light fill you. Use it to bring peace to

your heart. Thank you.”

Letter from Guantánamo detainee Fayiz al-Kandari to lawyer,

21 March 2013. As of early May 2013, this Kuwaiti national

was reported to be on hunger strike and being “tube-fed”




Shaker Aamer reported to his lawyer that he was not yet being force fed (though there have

been reports that is now is). As of 2 May 2013, the military authorities were reporting that

23 of the detainees were being tube fed. The precise details of these tube feedings – who the

detainees are, the degree of coercion, at which point in a detainee’s hunger strike force

feeding was administered, and so on – were unknown to Amnesty International at the time of

writing. Lawyers are being informed by the Department of Justice if their client is being force

fed, and some have made this public. Fayiz al-Kandari (see picture), for example, had been

“tube-fed” for a week by 29 April, according to his lawyer. This Kuwaiti national has been

held at Guantánamo without trial since May 2002, after being transferred there from

Afghanistan.

A recent account from a Yemeni detainee given through an interpreter to his lawyer at

Reprieve, together with other reports, raise serious concerns regarding the force-feeding, and

non-compliance with medical ethics by doctors carrying out the force-feeding. The account of

Samir Naji al Hasan Moqbel, who says he has been on hunger strike since 10 February

2013, includes the following:

“I will never forget the first time they passed the feeding tube up my nose. I can’t

describe how painful it is to be force-fed this way. As it was thrust in, it made me feel

like throwing up. I wanted to vomit, but I couldn’t. There was agony in my chest, throat

and stomach. I had never experienced such pain before. I would not wish this cruel

punishment upon anyone.

I am still being force-fed. Two times a day they tie me to a chair in my cell. My arms,

legs and head are strapped down. I never know when they will come. Sometimes they

come during the night, as last as 11pm, when I’m sleeping…

During one force-feeding the nurse pushed the tube about 18 inches into my stomach,

hurting me more than usual, because she was doing things so hastily…It was so painful

that I begged them to stop feeding me. The nurse refused to stop feeding me. As they

were finishing, some of the ‘food’ spilled on my clothes. I asked them to change my

clothes, but the guard refused to allow me to hold on to this last shred of my dignity.”38

The AMA has already raised the issue of medical ethics in relation to the feeding of detainees

at Guantánamo. In his letter to US Secretary of Defense Charles Hagel, cited above, the AMA

President emphasised that:

“The AMA has long endorsed the World Medical Declaration of Tokyo, which is

unequivocal on this point: ‘Where a prisoner refuses nourishment and is considered by

the physician as capable of forming an unimpaired and rational judgment concerning the

consequences of such a voluntary refusal of nourishment, he or she shall not be fed

artificially. The decision as to the capacity of the prisoner to form such a judgment

should be confirmed by at least one other independent physician’.”39

In its Declaration of Malta, adopted some years after the Declaration of Tokyo, the World

Medical Association has underlined that the force feeding of a mentally competent hunger

striker by medical staff contravenes medical ethics.40 Decision-making in this area is very

complex, which heightens the need for the detainees to be guaranteed continued and regular

access to independent medical assessment and care. The need for independent medical care

is also heightened by the fact that this is a prison to which lawyers only have sporadic access

given the facility’s location in a remote military base, and by the fact that a number of the

detainees are alleged to have previously suffered torture or other cruel, inhuman or degrading

treatment at the hands of US military or other government personnel, particularly in the

earlier stages of their detention (see case of Musa’ab al Madhwani above).

The authorities must not instruct or require medical staff caring for detainees on hunger

strike to act in any way that contravenes their professional judgment and internationally




agreed medical ethics. Such ethics include the principle of informed consent to any

treatment, which in turn includes the intake of food and nutrients.

Force feeding of a mentally competent hunger striker is not only contrary to medical ethics

but in addition breaches their right to freedom of expression. Accordingly, force feeding must

never be used as a tool of repression or means to break the strike and impede a detainee’s

right to peaceful protest.

Additionally, force feeding would amount to cruel, inhuman or degrading treatment, or even

in some circumstances torture, in violation of international law if it is intentionally and

knowingly conducted in a manner that causes unnecessary pain or suffering.41

EXCUSES, EXCUSES On 15 April 2013, the White House spokesperson was asked about the detentions, in view of

the ongoing hunger strikes and the clashes between detainees and guards on 13 April as the

detainees at Camp VI were moved from communal to single-cell living. He said that the White

House was monitoring the situation closely. He reiterated that

“it is our view, the President’s view that that facility ought to be closed… But the

obstacle to closing Guantánamo Bay – obstacles have been raised by Congress, and that

remains a reality. But our position is clear: It’s in our national security interest to

pursue that, and the President remains committed to it.”

Asked if there was anything the administration was doing with Congress to try to make this

happen”, the spokesperson responded:

“we are always discussing with Congress our belief that we should take the action that

the President has long supported, that military commanders and the President’s

predecessor supported, because it’s in our national security interest. Congress has, as

you know, raised obstacles to this, legislatively, and that has made it obviously more

difficult to pursue this. But that does not change the fact that it is the President’s

objective, and we are constantly looking for ways to move forward on that objective… We

do have constraints placed on us by Congress, but that doesn’t lessen in the President’s

view the need to pursue this agenda.”42

As the ICRC President said on 11 April 2013 after meeting President Obama at the White

House, “The issue of Guantánamo is politically blocked in this country”.43 Moreover, it

should be pointed out that while the administration is quick to blame Congress for blocking

resolution of the Guantánamo detentions, it is been just as quick to exploit legislation passed

by Congress in 2006 to block judicial review of claims brought by Guantánamo detainees,

including most recently the motion for emergency relief brought on behalf of Musa’ab al

Madhwani.

In the Obama administration’s response to Musa’ab al Madhwani’s motion for emergency

relief, the Department of Justice urged the District Court on 11 April 2013 to summarily

dismiss the motion for lack of jurisdiction:

“By statute, Congress has exercised its constitutional prerogative to withdraw from the

federal courts jurisdiction … Here, through Section 7 of the Military Commissions Act of

2006 (“MCA”), Congress has exercised its jurisdictional prerogative, not to grant, but to

withdraw from federal courts jurisdiction to adjudicate conditions-of-confinement claims

by detainees at Guantánamo Bay:

‘no court, justice, or judge shall have jurisdiction to hear or consider any other

action against the United States or its agents relating to any aspect of the detention,

transfer, treatment, trial, or conditions of confinement of an alien who is or was




detained by the United States and has been determined by the United States to

have been properly detained as an enemy combatant or is awaiting such

determination.’

As reflected in a number of floor statements, by withdrawing court jurisdiction over

detainees’ conditions-of-confinement claims, Congress intended to prevent the detainees

from consuming resources and disrupting operations at the Guantánamo Bay Naval Base

through litigation not related to the legality of their detention.”44

The version of the MCA signed into law by President Obama on 28 October 2009 revised the

military commission system but left untouched the above wording contained in Section 7.2

of the MCA passed in 2006.

On 15 April 2013, the day the White House spokesperson reiterated that Congress was to

blame for blocking resolution of the Guantánamo detentions, the administration was arguing

in federal District Court in Washington, DC, that Musa’ab Al Madhwani’s emergency motion

should be dismissed. At the end of the hearing, Judge Hogan did so, dismissing the motion

on grounds of lack of jurisdiction under Section 7.2 of the MCA.

Also on 15 April 2013, lawyers for a former Guantánamo detainee filed a brief in federal

appellate court, responding to the Obama administration’s bid to have that court continue to

block judicial remedy for a former Guantánamo detainee, who is seeking damages for the

physical and psychological injuries he allegedly suffered as a result of abuse in US custody in

Afghanistan and the naval base in Cuba.45 “All of plaintiff’s claims are jurisdictionally

barred” by Section 7.2 of the MCA, the administration has asserted.46

The Obama administration had been successful in the lower court. In December 2011, a

judge on the DC District Court granted the administration’s motion to dismiss the lawsuit

brought by Abdul Rahim Abdul Razak al Janko, a Syrian national, who has alleged among

other things that when in US custody in Afghanistan he was subjected to “abusive

interrogation techniques”, including “striking his forehead; threatening to remove his

fingernails; sleep deprivation; exposure to very cold temperatures; humiliation; and rough

treatment” and that in Guantánamo he was tied, shackled, force-fed, had his Koran

desecrated, was subjected to “extreme sleep deprivation” in solitary confinement, and to

“severe beatings and threats against himself and his family”. He alleged that as a result of

the abuse, he attempted suicide 17 times. The District Court granted the government’s

motion to dismiss, citing section 7.2 of the MCA, which he said stripped jurisdiction of the

court to consider such claims.47

In February 2012, the US Court of Appeals for the DC Circuit ruled that the federal courts

had no jurisdiction to consider a lawsuit for damages brought by relatives of two detainees

who died in Guantánamo in June 2006. The Court found that jurisdiction had been removed

under Section 7.2 of the MCA.48

The Obama administration’s willingness to rely upon the MCA – legislation signed into law by

President Bush in 2006 that further facilitated impunity and absence of remedy for past

violations, and resuscitated unfair trials by military commissions – should be set against the

administration’s repeated use of the excuse “Congress is blocking closure of Guantánamo” as

a reason for the impasse on the detentions.

Under international law, the fact that one branch of government has passed legislation

purporting to block another branch from ending an unlawful indefinite detention regime is no

justification for the failure of the state as a whole from meeting its treaty obligations.49

An ironic feature of this blame game is the degree to which the US administration previously

claimed an executive authority to set up Guantánamo, to initiate military commission trials,

to authorize secret detention, enforced disappearance, torture and other cruel, inhuman or

degrading treatment. Successive US administrations have also claimed the authority to use




military force without congressional authorization. For example, a Department of Justice

memorandum from late September 2001, which has never been withdrawn, takes an

expansive view of presidential power in the counter-terrorism context:

“We think it beyond question that the President has the plenary constitutional power to

take such military actions as he deems necessary and appropriate to respond to the

terrorist attacks upon the United States on September 11, 2001. Force can be used

both to retaliate for those attacks, and to prevent and deter future assaults on the

Nation. Military actions need not be limited to those individuals, groups, or states that

participated in the attacks on the World Trade Center and the Pentagon: the Constitution

vests the President with the power to strike terrorist groups or organizations that cannot

be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a

similar threat to the security of the United States and the lives of its people, whether at

home or overseas. In both the War Powers Resolution and the Joint Resolution, Congress

has recognized the President's authority to use force in circumstances such as those

created by the September 11 incidents. Neither statute, however, can place any limits

on the President's determinations as to any terrorist threat, the amount of military force

to be used in response, or the method, timing, and nature of the response. These

decisions, under our Constitution, are for the President alone to make.”50

Today, the US administration says its hands are tied by Congress in finding a solution to the

cases of 166 men whose human rights the USA denies year after year.

Blaming Congress for passing legislation to block resolution of the detentions is simply not

good enough – and moreover the administration should argue in court that the MCA does not

block remedy for former detainees or judicial review of detention conditions of current ones.

The USA’s failure to meet its obligation to resolve these detentions in a manner that fully

meets its obligations under the International Covenant on Civil and Political Rights and other

international human rights treaties is an urgent matter that needs resolving now. All branches

of the US government should work for that goal.

PROMISES, PROMISES At a media briefing on 26 April 2013, with the US military revealing that it considered 100

of the detainees at Guantánamo to be on hunger-strike, the White House Press Secretary was

again asked about the situation at the detention camp. He responded in familiar fashion:

“we continue to monitor the hunger strikers at Guantanamo closely. And this is

something obviously that the Defense Department has the most specific information on.

Here at the White House, the President remains committed to closing the detention

facility at Guantanamo Bay. Some progress has been made under this administration

and under the previous administration. However, Congress has enacted and renewed

legislation in order to foreclose our ability to close the detention facility… But a

fundamental obstacle here to closing this detention facility – which is so clearly, the

President believes and his predecessor and numerous others, including military leaders,

believe is in our national security interest to do – the obstacle remains at Congress. But

we’re going to continue to press forward in trying to deal with this problem.”51

Not only is the excuse that the administration continues to offer for the USA’s failure to

resolve the Guantánamo detentions inadequate, so too was the promise that President Obama

in January 2009 to close the detention facility. For if that promise is met within the terms of

President Obama’s executive order of 22 January 2009, the human rights problem will not be

over.

As Amnesty International pointed out a few days after President Obama signed the Executive

Order, and has repeated since in trying to persuade the USA to change its approach, this




commitment to “the prompt and appropriate disposition of the individuals detained at

Guantánamo” and the “closure of the detention facilities at Guantánamo” was framed not as

a human rights issue but primarily one “further[ing] the national security and foreign policy

interests of the United States.”52

Lacking a human rights framework – which demands fair trial or release of the detainees, all

of them – the administration set up a Task Force under the order to review the detentions to

decide what to do with each detainee. Over the months that the Task Force did its work,

members of Congress took to turning the detentions not into a human rights issue, but a

domestic political one. As President Obama said in May 2009 in reference to Guantánamo,

“over the last several weeks, we've seen a return of the politicization of these issues that have

characterized the last several years…And we will be ill-served by some of the fear-mongering

that emerges whenever we discuss this issue.”53

But at the same time it was clear that while President Obama remained committed to closing

the Guantánamo facility, he was an advocate of indefinite detention under a global “war”

framework. He emphasised not only that “We are indeed at war with al Qaeda and its

affiliates”, but also that there was a category of detainee who could be detained indefinitely

if the administration determined that they could neither be brought to trial nor released.54 He

also supported keeping military commissions as an option to try some detainees, although his

preference was trials by federal court where “feasible”.

Eight months later, the Task Force set up under President Obama’s executive order published

its final report. It had concluded, among other things, that 48 detainees then held at

Guantánamo, whom it did not identify, were “too dangerous to transfer but not feasible for

prosecution”. They would, it said, “remain in detention pursuant to the government’s

authority under the Authorization for use of Military Force [AUMF], passed by Congress in

response to the attacks of September 11, 2001.” Amnesty International has long called for

the AUMF – the broadly worded and long abused domestic law underpinning for the USA’s

global “war” framework – to be revoked.

Without a fundamental change in approach by the USA, closure of the Guantánamo detention

facility will simply mean relocation of at least some of its current detainees to indefinite

detention elsewhere – as well as unfair trials for military commissions for some of them.

At the White House press conference on 30 April 2013, President Obama broke his recent

relative silence on the Guantánamo issue. Asked about the hunger strikes, he restated his

commitment to closing the detention facility and said that he would not only get his

administration to review its options on the Guantánamo detentions but also that he would

“reengage with Congress to try to make the case that this is not something that’s in the best

interest of the American people. And it’s not sustainable”. He is right and he should now

expressly underline that international human rights law and principles oblige the USA to

close Guantánamo.

The day after President Obama’s intervention, however, the White House was once again

emphasising congressional obstacles to closing the detention facility and framing that goal in

terms of domestic interests. At a media briefing, the President’s Press Secretary said:

“Unfortunately, Congress has thrown up obstacles to the achievement of that goal, as

you know. And that has made it, to date, impossible to close that facility. We have

made progress in moving detainees to third countries. And we are continuing to

evaluate detainees and look at ways to continue that process going forward. So there are

things that the President can do administratively, but this will also require congressional

agreement. And we will work with Congress to try to persuade them of the overriding

national security interests as well as economic interests in closing Guantánamo Bay.”55

It is long past time for the US government – all three branches of it – to address resolution of




these detentions as a human rights issue. Indefinite detention must end. Those detainees

whom the government has no intention of charging with recognizably criminal offences

without further delay and with a view to bringing them to fair trial, should be immediately

released.

FIVE STEPS TOWARDS ENDING THE GUANTÁNAMO INJUSTICE Following President Obama’s renewal of his commitment to shut down the US detention

centre at Guantánamo Bay, Amnesty International urges his administration and Congress to

work towards this goal as a matter of urgency and a matter of human rights.

Among the steps the US government must take towards ending the injustice of Guantánamo

are the following five:

� Review conditions at Guantánamo: Pending resolution of the detentions, and without delaying that goal in any way, immediately conduct a detailed review of

conditions of detention and of policies implemented in response to the hunger

strike, including: evaluating cell-search, force-feeding and comfort item policies,

and allowing full access to independent medical professionals, UN experts, and

human rights organizations, and ensure all policies comply with international

human rights law and medical ethics.

� Dedicate resources, ensure leadership: A high-level White House position should be appointed to drive forward this issue, to coordinate review of all executive

options, and to liaise with and ensure pressure on Congress. There should be no

more delays, and no more excuses for the USA’s failure to meet its international

human rights obligations.

� Expedite safe detainee transfers: Dozens of the Guantánamo detainees have long been “approved for transfer” by the US authorities. Many are Yemeni nationals,

who remain in limbo because of the moratorium on repatriation of Yemeni

detainees imposed by the administration over three years ago. The administration

should accept Senator Dianne Feinstein’s offer to help resolve the cases of the 86

detainees she has said were approved for transfer in the past and her call on the

administration to review the repatriation moratorium.

� Apply human rights framework: Even if the US administration meets its commitment to close the Guantánamo detention facility, it apparently intends to

hold at least 46 of the detainees indefinitely without charge or trial somewhere

else on the basis of its flawed “global war” framework. This is unacceptable, as is

the continuing resort to military commission trials that do not meet international

standards. Congress and the administration should commit to addressing the

detentions under a framework that complies with international human rights law

and standards, something that has been missing from the outset.

� Charge and try in civilian courts: Detainees who are to be prosecuted should be charged and tried in ordinary federal civilian court, without recourse to the death

penalty. Any detainees who are not to be charged and tried should be released.

Any resolution of the injustice of Guantánamo will be incomplete without full accountability

for the human rights violations that have been committed against detainees, including the

crimes under international law of torture and enforced disappearance. Genuine access to

meaningful remedy must be guaranteed to those who have been subjected to violations, and

the use of secrecy and immunity to block accountability and remedy must be ended.




ENDNOTES

1 Remarks on the Release of the Human Rights Report, John Kerry, Secretary of State, Press Briefing

Room, Washington, DC, 19 April 2013, http://www.state.gov/secretary/remarks/2013/04/207791.htm

2 Remarks by the President, The Vice President, The First Lady, Dr. Jill Biden, and Petty Officer David

Padilla at Joining Forces Employment Event, White House, 30 April 2013,

http://www.whitehouse.gov/the-press-office/2013/04/30/remarks-president-vice-president-first-lady-dr-

jill-biden-and-petty-offi

3 Obaydullah v. Obama. Declaration of Obaidullah, 27 March 2013. US District for the District of

Columbia, 5 April 2013.

4 See USA: Another detainee dies at Guantánamo, 11 September 2012,

http://www.amnesty.org/en/library/info/AMR51/077/2012/en

5 The authorities have reported that Adnan Latif died from an overdose of psychiatric medication.

6 Guantanamo Bay: Overview of the ICRC's work for internees, 30 January 2004, Operational Update,

http://www.icrc.org/eng/resources/documents/misc/5qrc5v.htm

7 Human Rights and Democracy 2012. UK Foreign and Commonwealth Office, April 2013, available at

http://www.hrdreport.fco.gov.uk/ (page 78).

8 Pillay says Guantánamo detention regime is in ‘clear breach of international law’ and should be closed,

Office of UN High Commissioner for Human Rights, News release, 5 April 2013,

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13212&LangID=E

9 For past and latest figures, see http://www.miamiherald.com/2013/03/29/3313577/hunger-

strike.html. Lawyers for the detainees have reported higher numbers of detainees on hunger strike than

official recognized by the prison authorities.

10 See Some force-fed captives are cleared for release. Miami Herald, 1 May 2013,

http://www.miamiherald.com/2013/04/26/3366805/some-force-fed-captives-are-cleared.html

11 See More Navy medics arrive at Guantánamo to help out on forced feedings. Miami Herald, 29 April

2013.

12 Letter available at http://media.miamiherald.com/smedia/2013/04/30/07/58/FRs25.So.56.pdf

13 The letter is available at http://www.amnesty.org/en/library/info/AMR51/014/2013/en

14 IACHR, UN Working Group on Arbitrary Detention, UN Rapporteur on Torture, UN Rapporteur on

Human Rights and Counter-Terrorism, and UN Rapporteur on Health reiterate need to end the indefinite

detention of individuals at Guatánamo Naval Base in light of current human rights crisis. 1 May 2013,

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13278&LangID=E

15 See, for example, Chapter 6 of The Report of The Constitution Project’s Task Force on Detainee

Treatment, available at http://detaineetaskforce.org/. The Department of Justice memorandums that gave

legal approval to the use of “enhanced interrogation techniques” against detainees in secret CIA custody

repeatedly stated that approval was based on the CIA’s assertion that health professionals would be

available to monitor those being subjected to these techniques, which violated the international

prohibition of torture and other ill-treatment

16 2012 Human Rights Reports: Tunisia, 19 April 2003,

http://www.state.gov/j/drl/rls/hrrpt/2012/nea/204385.htm

17 Cuban authorities 'responsible' for activist's death on hunger strike, 20 January 2012,




http://www.amnesty.org/en/news/cuban-authorities-responsible-activists-death-hunger-strike-2012-01-20

18 Daily Press Briefing, US Department of State, 20 January 2012,

http://www.state.gov/r/pa/prs/dpb/2012/01/182271.htm

19 Feinstein urges Obama Admin to transfer cleared Guantánamo detainees. News release and letter

from Senator Dianne Feinstein to National Security Director Tom Donilon, 25 April 2013,

http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=2966b770-f7bb-42da-8dcb-

4e8d584cde53

20 White House press briefing by Press Secretary Jay Carney, 1 May 2013,

http://www.whitehouse.gov/the-press-office/2013/05/01/press-briefing-press-secretary-jay-carney-

512013 (“Well, we have a moratorium on the transfer of Yemeni detainees to Yemen -- 50 percent,

roughly, I think, of those detainees still at Guantánamo are Yemeni, so that is a significant bloc and it is

one reason why there are the number of detainees at Guantánamo who remain there. But that

moratorium is in place because, as you know, there was a transfer of detainees that resulted in their

release, and it was the judgment that we made that it was no longer the right thing to do to transfer

detainees when we had agreements from the host government to keep them incarcerated. So we're

obviously evaluating this and other aspects of the situation in Guantánamo, but that is our policy. The

moratorium remains in place.”)

21 For further information and references on the Musa’ab Al-Madwani case, see USA: See no evil:

Government turns the other way as judges make findings about torture and other abuse, February 2011,

http://www.amnesty.org/en/library/info/AMR51/005/2011/en and USA: Still failing human rights in the

name of global ‘war’, 20 January 2010, http://www.amnesty.org/en/library/info/AMR51/006/2010/en

22 Al-Madhwani v. Obama, Brief for petitioner-appellant Musa’ab Al-Madhwani, In the US Court of

Appeals for the DC Circuit, 15 November 2010.

23 Supplemental declaration of Stephen N. Xenakis, M.D., 13 April 2013.

24 United Nations Office of the High Commissioner for Human Rights, Istanbul Protocol: Manual on the

Effective Investigation and. Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, 2004, UN Doc.: HR/P/PT/8/Rev.1, para. 241. The UN Committee against Torture (CAT)

has also observed that “victims may be at risk of re-traumatization and have a valid fear of acts which

remind them of the torture or ill-treatment they have endured.” UN CAT, General Comment No. 3:

Implementation of article 14 by States parties, 13 December 2012, UN Doc. CAT/C/GC/3, (GC 3) para.

13.

25 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465

UNTS 85, Article 14 (ratified by the USA on 21 October 1994); see also CAT, GC 3, paras 11-15.

26 For example, see UN Doc.: E/CN.4/2006/120, 27 February 2006. Situation of detainees at

Guantánamo Bay. Report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention,

Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy;

the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,

Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Asma Jahangir; and the Special

Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical

andmental health, Paul Hunt, paragraphs 54, and 79-82.

27 Obaydullah v. Obama. Declaration of Obaidullah, 27 March 2013. US District for the District of

Columbia, 5 April 2013.

28 US Department of State daily press briefing, Patrick Ventrell, Acting Deputy Spokesperson, 2 May

2013, http://www.state.gov/r/pa/prs/dpb/2013/05/208885.htm

29 Media Release: Commander orders single-cell detention at Guantánamo Bay for continued detainee




health and security, Joint Task Force Guantánamo Public Affairs, 13 April 2013,

http://www.southcom.mil/newsroom/Pages/MEDIA-RELEASE-Commander-Orders-Single-Cell-Detention-

at-Guantanamo-Bay-for-Continued-Detainee-Health-and-Security.aspx

30 UN Basic Principles on the Use of Force and Firearms, adopted by the Eighth UN Congress on the

Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990,

Principle 15. Principle 16 also provides that “Law enforcement officials, in their relations with persons

in custody or detention, shall not use firearms, except in self-defence or in the defence of others against

the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a

person in custody or detention presenting” a grave threat to life.

31 Standard Minimum Rules for the Treatment of Prisoners, adopted by the First UN Congress on the

Prevention of Crime and the Treatment of Offenders, approved by the UN Economic and Social Council

in resolutions 663C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 (SMR); UN Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by

UN General Assembly resolution 43/173 of 9 December 1988 (the Body of Principles).

32 SMR, paras. 22 and 24; UN Body of Principles, Principle 24.

33 UN Human Rights Committee, General Comment No. 20: Replaces general comment 7concerning

prohibition of torture and cruel treatment or punishment (Article 7), 10 March 1992, UN Doc.:

HRI/GEN/1/Rev.1 at 30 (1994); Interim Report of the UN Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment, 5 August 2011, UN Doc.: A/66/268.

34 SMR, para 15.

35 Physicians and hunger strikes in prison: Confrontation, manipulation, medicalization and medical

ethics (part 1). Hernán Reyes, Scott A. Allen and George J. Annas. World Medical Journal, February

2013, http://www.wma.net/en/30publications/20journal/pdf/wmj201301.pdf

36 Anam et al v. Obama et al, Declaration of Martha Rayner, In the US District Court for DC, 11 April

2013.

37 Anam et al v. Obama et al. Declaration of Clive A. Stafford Smith, Filed as supplemental exhibit

supporting memorandum of law in support of emergency motion of petitioner Musa’ab Omar al Madhwani

for humanitarian and life-saving relief. In the US District Court for DC, 13 April 2013.

38 Gitmo is killing me. By Samir Naji al Hasan Moqbel. New York Times, 14 April 2013,

http://www.nytimes.com/2013/04/15/opinion/hunger-striking-at-guantanamo-

bay.html?partner=rssnyt&emc=rss&_r=0

39 Letter available at http://media.miamiherald.com/smedia/2013/04/30/07/58/FRs25.So.56.pdf

40 World Medical Association. Declaration of Malta on Hunger Strikers. Adopted by the 43rd World

Medical Assembly, St. Julians, Malta, November 1991 and editorially revised by the 44th World Medical

Assembly, Marbella, Spain, September 1992 and revised by the 57th WMA General Assembly,

Pilanesberg, South Africa, October 2006. "Forcible feeding is never ethically acceptable. Even if

intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a

form of inhuman and degrading treatment.” Para. 13.

http://www.wma.net/en/30publications/10policies/h31/

41 Force-feeding breaches law, UN says amid Guantánamo strike, Channel News Asia, 1 May 2013,

http://www.channelnewsasia.com/news/world/force-feeding-breaches-law-un-says-amid-/660400.html

(“’If it’s perceived as torture or inhuman treatment – and it’s the case, it’s painful – then it is prohibited

by international law,’ Rupert Coville, a spokesman for the UN High Commissioner for human rights, told

AFP”)




42 Press Briefing by Press Secretary Jay Carney, White House, 15 April 2013,


4152013

43 Red Cross chief: End political blockage on Guantánamo, Miami Herald, 11 April 2013,

http://www.miamiherald.com/2013/04/11/3339070/icrc-head-calls-on-us-to-end-political.html

44 Anam et al v. Obama et al, Respondents’ rebuttal memorandum on the issue of jurisdiction over

petitioner Musa’ab Oma al Madhwani’s emergency motion for humanitarian and life-saving relief. In the

US District Court for DC, 11 April 2013.

45 Al Janko v. Gates et al, Appellant’s reply brief, US Court of Appeals for the DC Circuit, 15 April 2013.

46 Al Janko v. Gates et al. Brief for Defendants-Appellees, US Court of Appeals for the DC Circuit, 1

March 2013.

47 Al Janko v. Gates et al, Memorandum Opinion, US District Court for the District of Columbia, 11

December 2011

48 Al-Zahrani v. Rodriguez, US Court of Appeals for the DC Circuit, 21 February 2012. The Court of

Appeals decided that the US Supreme Court’s Boumediene v. Bush ruling had only found the first part of

MCA § 7 – purporting to strip habeas corpus jurisdiction – unconstitutional, saying “We…presume that

the Supreme Court used a scalpel and not a bludgeon in dissecting §7 of the MCA, and we uphold the

continuing applicability of the bar to our jurisdiction over ‘treatment’ case”.

49 Article 27, Vienna Convention on the Law of Treaties (“A party may not invoke the provisions of its

internal law as justification for its failure to perform a treaty”).

50 The President’s constitutional authority to conduct military operations against terrorists and nations

supporting them. Memorandum opinion for Timothy Flanigan, the Deputy Counsel to the President, from

John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, US Department of Justice, 25

September 2001, http://www.justice.gov/olc/warpowers925.htm

51 Press Secretary Jay Carney, White House briefing, 26 April 2013, http://www.whitehouse.gov/the-

press-office/2013/04/26/press-briefing-press-secretary-jay-carney-4262013

52 See USA: The promise of real change. President Obama’s executive orders on detentions and

interrogations, 30 January 2009, http://www.amnesty.org/en/library/info/AMR51/015/2009/en

(“President Obama’s executive order states that “in view of the significant concerns raised by these

detentions, both within the United States and internationally, prompt and appropriate disposition of the

individuals currently detained at Guantánamo and closure of the facilities in which they are detained

would further the national security and foreign policy interests of the United States and the interests of

justice”. Amnesty International’s aim is to ensure that the measures taken to end the Guantánamo

detentions comply with the USA’s international obligations as well… Specifics as well as speedy action

are now of the essence. The executive order contains little in terms of specific commitments or criteria

for deciding the fate of individual detainees. Amnesty International looks forward to the administration

making public further details of its plans as soon as possible, and the organization makes some

observations on the executive order and provides some recommendations below.”)

53 Remarks by the President on national security, 21 May 2009, http://www.whitehouse.gov/the-press-

office/remarks-president-national-security-5-21-09

54 Ibid.

55 White House press briefing by Press Secretary Jay Carney, 1 May 2013,


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